B-134955, MAR. 14, 1958

B-134955: Mar 14, 1958

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TO THE SECRETARY OF THE NAVY: REFERENCE IS MADE TO A LETTER DATED JANUARY 20. IT APPEARS THAT ALL BIDS UNDER THE SALES INVITATION WERE OPENED. ON THAT DATE A WESTERN UNION TELEGRAM WAS RECEIVED AT THE OAKLAND NAVAL SUPPLY CENTER FROM NATHAN S. SINCE THE TELEGRAPHIC AMENDMENT WAS NOT RECEIVED AT THE SUPPLY CENTER UNTIL AFTER THE TIME OF THE BID OPENING IT WAS NOT CONSIDERED ACCEPTABLE AND. ITEM NO. 20 WAS AWARDED BY CONTRACT N228S-21481. AT THAT TIME THE CORPORATION WAS ADVISED THAT THE TELEGRAPHIC AMENDMENT WAS RECEIVED TOO LATE TO BE ACCEPTED. ADVISED THAT THE TELEGRAM WAS SENT IN TIME FOR IT TO HAVE BEEN RECEIVED PRIOR TO 1 P.M. 300 HAS BEEN MADE TO THE DEPARTMENT OF THE NAVY BUT THAT THE CORPORATION HAS NOT ACCEPTED DELIVERY OF THE PROPELLERS AND SEEKS TO HAVE ITS BID WITHDRAWN.

B-134955, MAR. 14, 1958

TO THE SECRETARY OF THE NAVY:

REFERENCE IS MADE TO A LETTER DATED JANUARY 20, 1958, WITH ENCLOSURES, FILE NO. R11.2 L8/NT4-28, FROM THE ASSISTANT CHIEF FOR PURCHASING, BUREAU OF SUPPLIES AND ACCOUNTS, REQUESTING A DECISION AS TO WHETHER THERE PROPERLY MAY BE DEFINED THE RELIEF SOUGHT BY NATHAN S. COLEN AND SON, INC., UNDER SALES CONTRACT NO. N228S-21481, DATED NOVEMBER 14, 1957.

IN RESPONSE TO SALES INVITATION NO. B-79-58-228, ISSUED ON OCTOBER 21, 1957, BY THE NAVAL SUPPLY CENTER, DISPOSAL DIVISION, OAKLAND, CALIFORNIA, NATHAN S. COLEN AND SON, INC., SUBMITTED A BID DATED NOVEMBER 12, 1957, FOR THE PURCHASE OF ITEM NO. 20, COVERING THREE PROPELLERS, SHIP, IB AND OB, ETC., AT $3,840 EACH, OR FOR A TOTAL PRICE OF $11,520. IT APPEARS THAT ALL BIDS UNDER THE SALES INVITATION WERE OPENED, AS SCHEDULED, AT ABOUT 1 P.M. ON NOVEMBER 12, 1957. AT 1:44 P.M. ON THAT DATE A WESTERN UNION TELEGRAM WAS RECEIVED AT THE OAKLAND NAVAL SUPPLY CENTER FROM NATHAN S. COLEN AND SON, INC., AMENDING ITS BID FOR THE THREE SHIP PROPELLERS UNDER ITEM NO. 20, FROM $3,840 EACH TO $3,094.14 EACH. SINCE THE TELEGRAPHIC AMENDMENT WAS NOT RECEIVED AT THE SUPPLY CENTER UNTIL AFTER THE TIME OF THE BID OPENING IT WAS NOT CONSIDERED ACCEPTABLE AND, THEREFORE, ITEM NO. 20 WAS AWARDED BY CONTRACT N228S-21481, ON NOVEMBER 14, 1957, TO NATHAN S. COLEN AND SON, INC., ON THE BASIS OF ITS ORIGINAL BID OF $3,840 EACH FOR THAT ITEM. ON NOVEMBER 13, 1957, NATHAN S. COLEN AND SON, INC., CALLED THE OFFICE OF THE GOVERNMENT CONTRACTING OFFICER TO ASCERTAIN CERTAIN INFORMATION ON THE BIDS RECEIVED. AT THAT TIME THE CORPORATION WAS ADVISED THAT THE TELEGRAPHIC AMENDMENT WAS RECEIVED TOO LATE TO BE ACCEPTED. BY LETTER DATED NOVEMBER 13, 1957, NATHAN S. COLEN AND SON, INC., ADVISED THAT THE TELEGRAM WAS SENT IN TIME FOR IT TO HAVE BEEN RECEIVED PRIOR TO 1 P.M. ON NOVEMBER 12, 1957, THE SCHEDULED BID OPENING TIME, AND THAT THE MATTER WOULD BE TAKEN UP WITH THE WESTERN UNION TELEGRAPH COMPANY. IT APPEARS THAT A BID DEPOSIT OF $7,300 HAS BEEN MADE TO THE DEPARTMENT OF THE NAVY BUT THAT THE CORPORATION HAS NOT ACCEPTED DELIVERY OF THE PROPELLERS AND SEEKS TO HAVE ITS BID WITHDRAWN.

SALES INVITATION NO. B-79-58-228 PROVIDES THAT "TELEGRAPHIC AMENDMENTS WILL BE ACCEPTED IF RECEIVED PRIOR TO BID OPENING.' THE RECORD CONTAINS A CERTIFIED COPY OF A LETTER DATED DECEMBER 24, 1957, FROM THE WESTERN UNION TELEGRAPH COMPANY, WHICH STATES THAT THE TELEGRAPHIC AMENDMENT WAS PLACED BY NATHAN S. COLEN AND SON, INC., WITH ITS HUNTINGTON PART OFFICE AT 11:34 A.M. ON NOVEMBER 12, 1957, AND WAS RECEIVED IN OAKLAND AT 11:43 A.M. THE LETTER ALSO STATES THAT AFTER THE TELEGRAM WAS ORIGINALLY RECEIVED IN OAKLAND AN EXCHANGE OF MESSAGES BETWEEN THAT STATION AND THE TRANSMITTING OFFICE AT HUNTINGTON PARK BECAME NECESSARY DUE TO SOME IRREGULARITY IN THE MESSAGE BROUGHT ABOUT BY TRANSMISSION DIFFICULTIES; THAT THE MESSAGE WAS RELEASED OVER THE PRIVATE LINE TO THE OAKLAND NAVAL SUPPLY CENTER AT 1:44 P.M. ON NOVEMBER 12, 1957, AND THAT "* * * UNDER NORMAL CIRCUMSTANCES THE MESSAGE WOULD HAVE BEEN TRANSMITTED INTO THE COMMUNICATIONS DIVISION AT THE NAVAL SUPPLY CENTER IN ADVANCE OF 1:00 P.M.' IT THEREFORE APPEARS THAT NATHAN S. COLEN AND SON, INC., FILED THE TELEGRAPHIC AMENDMENT WITH THE WESTERN UNION TELEGRAPH COMPANY IN AMPLE TIME FOR DELIVERY TO THE OAKLAND NAVAL SUPPLY CENTER PRIOR TO THE OPENING OF THE BIDS AND THAT THE DELAY WAS ATTRIBUTABLE TO WESTERN UNION AND WAS NOT DUT TO THE FAULT OR NEGLIGENCE OF THE CORPORATION.

IN A RECENT DECISION, B-135271, MARCH 10, 1958, TO THE SECRETARY OF THE ARMY, WE HELD THAT TELEGRAPHIC BIDS WHICH ARRIVED AFTER THE TIME SET FOR THE BID OPENING COULD NOT BE CONSIDERED IN VIEW OF THE EXPRESS PROHIBITION AGAINST THE CONSIDERATION THEREOF CONTAINED IN THE INVITATION FOR BIDS. THE INVITATION PROVIDED THAT "TELEGRAPHIC BIDS MUST BE RECEIVED IN THIS OFFICE PRIOR TO THE TIME SPECIFIED FOR THE OPENING OF BIDS.' WE POINTED OUT IN THE DECISION, HOWEVER, THAT:

"WE HAVE IN A NUMBER OF CASES HELD THAT TELEGRAPHIC MODIFICATIONS OF BIDS RECEIVED AFTER BID OPENING COULD PROPERLY BE CONSIDERED WHERE IT CLEARLY APPEARED THAT THE TELEGRAMS WERE FILED A SUFFICIENT TIME BEFORE THE SCHEDULED OPENING TO BE DELIVERED ON TIME IN THE NORMAL COURSE OF THE TELEGRAPH COMPANY'S BUSINESS; THAT THE DELAY WAS SOLELY THE FAULT OF THE TELEGRAPH COMPANY AND WITHOUT ANY FAULT OR NEGLIGENCE ON THE PART OF THE BIDDER; AND THAT THERE WAS NO POSSIBILITY OF PRIOR KNOWLEDGE BY THE BIDDER OF OTHER BIDS. IN MOST, IF NOT ALL, OF THOSE CASES THE PERTINENT INVITATION OR INSTRUCTIONS STIPULATED THAT TELEGRAPHIC MODIFICATIONS OF BIDS WOULD BE CONSIDERED IF RECEIVED PRIOR TO THE TIME SET FOR BID OPENING. THAT STIPULATION WAS NOT CONSIDERED AS TANTAMOUNT TO AN EXPRESS PROHIBITION AGAINST THE CONSIDERATION OF SUCH TELEGRAPHIC MODIFICATIONS IF NOT RECEIVED ON TIME, WHERE THE DELAY WAS NOT CHARGEABLE TO THE BIDDER.'

IN VIEW THEREOF, IT FOLLOWS THAT THE ABOVE QUOTED PROVISION IN THE SALES INVITATION HERE INVOLVED LIKEWISE MAY NOT BE REGARDED AS AN EXPRESS PROHIBITION AGAINST THE CONSIDERATION OF A TELEGRAPHIC MODIFICATION, AND THAT THE TELEGRAPHIC AMENDMENT HERE INVOLVED PROPERLY SHOULD HAVE BEEN CONSIDERED. ACCORDINGLY, CONTRACT NO. N228S 21481 SHOULD BE CANCELED WITHOUT ANY LIABILITY TO THE CORPORATION.

THE PAPERS, WITH THE EXCEPTION OF THE STATEMENT OF FACTS AND RECOMMENDATIONS OF THE CONTRACTING OFFICER AND THE COPY OF THE LETTER DATED DECEMBER 24, 1957, FROM THE WESTERN UNION TELEGRAPHIC COMPANY, ARE RETURNED TO YOU.